463 
ci 


CONFEDERATE   CONGRESS. 


Arkansas  Contested  Election, 


JOHNSON    VS.    GARLAND. 


EXPOSITION  AND  ARGUMENT  BY  THE  COUNSEL  OF  MR. 

JOHNSON. 


George  Washington  Flowers 
Memorial  Collection 

DUKE  UNIVERSITY  LIBRARY 


ESTABLISHED  BY  THE 

FAMILY  OF 

COLONEL  FLOWERS 


505d7*> 


CONTESTED   ELECTION 


JOHXsTSOlSr  vs.  QARLAND 


This  is  a  case  of  contest  about  a  seat  or  a  membership  in 
this  House,  arising  upon  the  returns  of  the  officers  of  the 
State  Government. 

The  Constitution  of  the  Confederate  States  declares  that 
"each  House"  of  Congress  "shall  be  the  judge  of  the  election 
returns  and  qualifications  of  its  own  members."  The  terms 
elections  and  returns  do  not  here  mean  the  same  thing,  and 
the  present  is  a  case  on  the  returns  of  a  member,  and  not 
properly  of  the  election  in  contradistinction  to  the  returns 
thereof. 

The  Constitution  of  the  Confederacy  declares  that  "the 
time,  place  and  manner  of  holding  elections  for  Sena- 
tors and  Representatives  shall  be  prescribed  in  each  State 
by  the  Legislature  thereof,  subject  to  the  provisions  of  this 
Constitution ;  but  the  Congress  may  at  any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  times  and 
places  of  choosing  Senators."  Nothing  is  here  said  about 
returns. 

The  Constitution  of  the  United^  States  contained  the  same 
provision,  except  the  clause  "  subject  to  the  provisions  of 
this  Constitution,"  and  the  Congress  of  the  United  States  in 

the  year ,  enacted  that  each  State  should  be  divided  by 

the  Legislature  thereof  intothe  number  of  districts  it  was  en- 
titled to  members  in  the  House  of  Representatives,  and  that 
one  member  of  Congress  should  be  elected  from  each  dis- 
trict. 

The  Provisional  Congress  of  the  Confederate  States  on 
the  9th  day  of  February,  1861,  enacted  that  "all  the  laws 
of  the  LTnitcd  States  of  America  in  force  and  in  use  in  the 


CONFEDERATE  CONGRESS. 


JOHNSON    VS.     GARLAND. 

Confederate  States  of  America  on  the  first  day  of  Novem- 
ber, I860,  and  not  inconsistent  with  the  Constitution  of  the 
Confederate  States,  be  and  the  same  are  hereby  continued 
in  force  until  altered  or  repealed  by  the  Congr-- 

The  State  of  Arkansas  would  have  been  entitled  to  four 
members  in  the  next  Congress  of  the  United  States,  and 
was  consequently  entitled  to  the  same  number  in  the  House 
of  Representatives  of  this  first  Congress  of  the  Confederate 
States  under  our  permanent  Constitution  and  the  Legisla- 
ture of  Arkansas,  accordingly  divided  the  State  into  four 
Congressional  Districts,  and  fixed  the  election  on  the  Gtb 
»f  November. 

The  States  had  been  left  by  the  Congress  of  the  United 
States  to  prescribe  the  manner  of  the  election,  with  the  ex- 
ception of  the  requirement  already  mentioned,  that  it  should 
be  had  by  Congressional  Districts,  and  it  is  obvious  that  the 
States  of  the  Confederacy  were  left  with  the  same  power. 

This  third  district  is  one  of  the  four  into  which  the  State 
was  so  divided,  and  was  composed  of  13  counties,  the  coun- 
ty of  Pulaski,  Saline,  Dallas,  Calhoun,  Union,  Jefferson, 
Bradley,  Drew,  Ashley,  Chicot,  Desha,  Praine,  and  the 
county  of  Arkansas.  The  election  was  on  the  6th  of  No- 
vember for  the  election  of  one  member  of  Congress. 

In  this  state  of  things  it  has  been  assumed,  whether  cor- 
rectly or  not  we  will  not  now  enquire ;  that  the  statutes  of 
Arkansas,  enacted  while  the  State  was  one  of  the  United 
States,  was  the  law  which  fixed  the  manner  in  which  this 
election  was  required  to  be  conducted. 

(It  will,  however,  be  noticed  that  the  State  Legisla- 
tures are  not  expressly  given  power  to  prescribe  the  manner  of 
the  returns  of  the  members,  and  if  such  power  was  vested 
in  them  by  the  Constitutions  it  was  by  mere  implication. 
And  it  will  be  recollected  that  the  Constitution  of  the  Con- 
federate States  expressly  declares  that  the  power  to  prescribe 
the  time,  place  and  manner  of  the  election,  shall  be  subject 
to  the  Constitution  of  the  Confederacy,  and  that  in  this  Con- 
stitution it  is  enacted,  that  each  House  shall  be  the  judge  of 
the  returns  as  well  as  the  election,  and  qualifications  of  its 
members.  And  certainly  in  such  case,  the  judgment  of  the 
House  exercised  under  such  expressed  grant  ought  not  to  be 
controled  by  the  act  of  the  State  officer,  thus  performed 
under  an  authority  derived  to  him  by  mere  implication.     It 


CONTESTED  ELECTION.  5 


EXPOSITION    AND    ARGUMENT. 

may  be  that  these  returns  ought  to  be  considered  as  prima  facia 
evidence,  and  sufficient  until  contested.  But  whenever  they 
are  questioned  they  must  certainly  occupy  the  lowest  position 
in  that  class  of  evidence,  and  must  be  overturned  by  any  proof 
which  will  satisfy  the  mind  that  they  are  erroneous.) 

(Election  in  the  Townships.) 

We  will  now  proceed  to  state  the  several  provisions  of 
this  law  of  Arkansas,  which  it  has  been  supposed  are  appli- 
cable to  this  case. 

There  being  no  question  made  here  in  respect  to  the  votes 
recorded,  it  will  be  sufficient  to  state  the  ordinary  mode  of 
election,  in  general  terms.  It  is  held  in  the  townships  of  the 
respective  counties,  at  the  place  in  each  fixed  by  the  county 
court;  but  the  court  may  divide  any  township  into  two  or 
more  election  precincts,  and  appoint  the  place  in  each  for 
the  election ;  it  is  superintended  at  each  place  by  three 
judges  of  election,  with  two  clerks:  each  of  whom  keeps  his 
own  poll  book :  the  votes  are  cast  by  ballot.  The  electors 
present  themselves  at  the  polls,  or  before  the  judges;  the 
supposition  is  in  succession;  here  each  delivers  his  ballot  or 
ticket  to  one  of  the  judges,  it  has  written  or  printed  within 
its  fold  the  name  of  the  person  voted  for,  and  of  the  office 
into  which  he  is  to  be  elected.  The  judge  thereupon  pro- 
nounces aloud  the  name  of  such  elector,  and  all  being  found 
right,  each  of  the  clerks  enters  his  name  in  the  column  on 
his  poll  book  and  affixes  thereto  the  proper  number,  accor- 
ding to  the  order  in  which  the  act  occurs.  The  ticket  is 
then  endorsed  by  this  number  and  deposited  in  the  ballot 
box,  and  so  on  until  all  the  votes  have  been  cast,  or  the  time 
for  receiving  of  them  has  expired  ;  then  the  poll  books  are 
closed. 

Section  16.  It  shall  be  the  duty  of  the  clerks  of  the  elec- 
tions to  register  the  names  of  each  and  all  electors  in  the  order 
in  which  they  present  their  tickets,  placing  opposite  each 
name  its  appropriate  number. 

Sec.  47.  At  the  closing  of  the  polls  the  poll  books  shall 
be  signed  by  the  judges  and  attested  by  the  clerks,  and  the 
names  contained  shall  be  counted  and  the  number  set  down 
at  the  foot  of  the  poll  books. 

This  poll  book  is  retained  by  the  judges  for  the  inspection 


CONFEDERATE  CONGRESS. 


JOHNSON    VS.     OAKLAND. 

of  all  persons.  This  provision  was  obviously  intended  to  ena- 
ble any  party  to  ascertain  whether  any  person  not  entitled 
to  vote  at  the  election  had  in  fact  voted,  and  to  prove  the 
fact  in  a  contest  of  the  election  on  this  ground,  or  involving 
this  question. 

It  is  subsequently  provided  that  after  the  election  has  been 
closed  the  judges  shall  envelope  all  the  ballots  under  seal, 
and  return  the  same  to  the  county  clerk,  and  that  the  en- 
velope shall  in  no  event  be  opened  except  in  cases  of  con- 
tested election  In  this  mode,  it  will  be  ascertained  for 
whom  the  illegal  voter  cast  his  vote. 

Thus  much  for  the  election,  we  will  now  proceed  to  state 
the  mode  of  ascertaining  the  result. 

(Ascertainment  of  Result  in  Townships.) 

We  have  already  seen  how  the  polls  were  closed  by  the 
signatures  oi:  the  judges,  and  the  election  thus  ended. 

Immediately  these  poll  books  are  thus  closed  and  signed, 
the  judges  are  directed  to  open  the  ballot-box,  and  with  the 
assistance  of  the  clerks,  ascertain  the  number  of  votes  given 
for  each  of  the  candidates  for  the  respective  offices,  which 
had  to  be  filled  by  the  election.  Rut  we  will  give  the  words 
of  the  law. 

Sec  48.  After  the  poll -books  are  signed,  the  ballot-box 
shall  be  opened  and  the  tickets  or  ballots  therein  contained 
shall  be  taken  out,  one  by  one  at  a  time,  by  one  of  the  judges, 
who  shall  read  distinctly,  while  the  ticket  remains  in  his 
hands,  the  name  or  names  contained  therein,  and  then  de- 
liver it  to  the  second  judge,  who  shall  examine  the  same,  to 
see  that  there  be  no  mistake,  and  pass  it  to  the  third  judge, 
who  shall  examine  and  carefully  preserve  the  same.  The 
same  method  shall  be  observed  in  respect  to  each  of  the 
tickets  in  the  ballot-box,  until  the  number  of  tickets  taken 
out  of  the  ballot-box  are  equal  to  the  names  in  the  poll- 
books. 

Sec.  40.  The  clerks  of  the  elections  shall  enter  on  a  list, 
or  poll-book,  in  separate  columns,  under  the  name  or  names 
of  the  persons  voted  for,  the  number  of  votes  given  for  each 
person,  as  read  by  the  judges;  and  shall  also  write  out  on 
said  list  or  poll-book,  in  a  legible  hand,  the  number  of  votes 
given  to  each  person  respectively. 


CONTESTED  ELECTION. 


EXPOSITION    AND    ARGUMENT. 

It  is  manifest  the  document  here  called  a  list  or  poll-book 
is  not  the  document  made  by  the  clerks  in  the  progress  of 
the  election.  The  first  contained  only  the  names  of  the 
electors,  and  the  figures  annexed  denoting  the  order  in 
which  he  voted,  corresponding  to  the  number  endorsed  on 
the  ballot  delivered  by  him  and  deposited  in  the  ballot-box. 
The  second  one  here  mentioned  contains  only  the  names  of 
the  candidates,  with  the  offices  for  which  they  were  candi- 
dates, each  standing  at  the  head  of  a  column,  with  figures 
under  each  denoting  the  number  of  the  votes  he  received. 

(Return  from  the  Townships.) 

Sec.  53.  After  the  examination  of  the  tickets  or  ballots 
shall  be  completed,  the  number  of  votes  for  each  person 
shall  be  enumerated,  under  the  inspection  of  the  judges, 
and  set  down  at  the  foot  of  the  columns  in  the  list  or  poll- 
books,  and  be  publicly  proclaimed  to  the  people  present. 
Page  472. 

Sec.  54.  The  judges  shall  certify  under  their  hands,  the 
number  of  votes  given  to  each  person,  and  the  office  for 
which  such  votes  were  given,  which  shall  be  attested  by  the 
clerks. 

This  is  the  return  of  the  election  in  the  township  or  elec- 
tion precinct,  made  by  the  judges  thereof  to  the  clerk  of  the 
county  court. 

It  is  not  stated  whether  the  certificate  or  return  of  the 
judges  shall  be  annexed  to  these  polls,  but  it  is  obvious  that 
this  poll-book  constitutes  an  appendage,  and  goes  up  to  the 
clerk's  office  with  the  return.  It  was  intended  for  a  check, 
it  is  supposed,  and  to  afford  a  means  of  correcting  any  error 
in  the  enumeration  or  addition  of  the  votes  committed  by 
the  judges,  but  that  both  documents,  the  poll-book,  and 
comprehensive  and  final  return  of  the  judges  were  required 
to  be  sent  up  to  the  clerk  for  this  purpose,  is  manifest  in  the 
following  section : 

Sec  58.  If  any  judge  of  election  in  any  township,  whose 
duty  it  may  be,  should  fail  to  deliver  to  the  clerk  of  the 
county  court  the  return  and  poll-book  of  said  election  within 
three  days,  as  prescribed  by  law,  on  the  fourth  day  the  clerk 
of  said  court  shall  despatch  a  messenger  to  bring  up  the  same. 

It  is  here  manifest  that  these  returns  of  the  judges  of  the 


CONFEDERATE  CONGRESS. 


JOHNSON    VS.     GARLAND. 

elections  in  the  townships  are  the  documents  on  which  the 
clerk  of  the  county  court  and  the  two  justices  or  household- 
ers make  up  their  abstract  and  return  of  the  votes  of  the 
county  in  every  such  election. 

This  work  at  the  court-house  of  the  clerk  and  his  two  as- 
sociates, is  thus  directed  by  the  statute. 

Sec.  GO.  On  the  fifth  day  after  the  election,  except  in 
cases  provided  for  in  sec.  58,  and  in  such  cases,  on  the  seventh 
day,  or  sooner,  if  all  the  returns  have  been  received,  the 
clerk  of  the  county  court  shall  take  to  his  assistance  two 
justices  of  the  peace  of  the  county,  if  they  can  be  conve- 
niently had,  and  if  not,  then  two  householders  havirg  the  qual- 
ifications of  electors,  and  shall  proceed  to  open  and  compare 
the  several  election  returns  which  have  been  made  to  his 
office,  and  make  abstracts  of  the  votes  given  for  the  several  can- 
didates for  each  office,  on  separate  sheets  of  paper.   Page  473. 

Sec.  62.  In  case  the  clerk  of  the  county  court  shall 
take  to  his  assistance  householders  instead  of  justices  of  the 
peace,  to  open  and  compare  the  returns  of  any  election,  such 
householders,  before  entering  on  the  duties,  shall  take  an 
oath  before  the  clerk,  faithfully  and  impartially  to  discharge 
their  duties.     Page  473. 

Sec  63.  Each  clerk  in  comparing  the  returns  of  election, 
shall  do  it  publicly  in  the  Courthouse  or  in  the  place  in 
which  the  courts  are  usually  held,  first  giving  notice  of  the 
same  by  proclamation  at  the  door. 

The  prescriptions  of  this  Section,  it  may  be  said,  are 
merely  directory,  but  they  show  that  a  solemnity  in  per- 
forming the  work  was  required,  and  we  will  presently  show 
that  the  essential  requirements  of  the  statute  were  certainly 
omitted.  The  document  which  follows  is  the  only  produc- 
tion on  this  occasion  relied  on  as  evidence  by  the  honorable 
sitting  member  with  any  color  of  propriety  of  the  vote  of 
the  county   of  Arkansas.     We   give   a  literal  copy: 

"  An  abstract  of  the  returns  uf  election  held  in  Arkansas 
county,  State  of  Arkansas,  on  Wednesday,  the  6th  day  of 
November,  1861,  for  a  Representative  to  the  Congress  of 
the  Confederate  States  of  America  for  the  third  district,  as 

appears  from  the  returns  made  to  this  office." ■ 

What  office  ? 

"  John  C.  Murry  received  ninety-three  votes. 

A.  H.  Garland  received  one  hundred  and  seventy-five  votes. 


CONTESTED  ELECTION. 


EXPOSITION    AND    ARGUMENT. 

S.  F.  Arnett  received  six  votes. 

W.  P.  Grace  received  eight  votes. 

J.  P.  Johnson  received  seventy-three  votes- 

Thos.  S.  James  received  one  vote. 

B.  P.  Ilarley  received  ten  votes. 

I,  Joseph  II.  Maxwell,  Clerk  of  the  Circuit  Court  and  ex 
officio  Clerk  of  the  County  Court  in  and  for  the  County  of 
Arkansas,  do  hereby  certify  that  the  above  statement  of  the 
polls  of  the  election  held  in  said  county,  on  the  6th  day  of 
November,  1861,  is  a  true  copy,  according  to  the  poll-books 
returned  and  filed  in  my  office  according  to  law. 

Given  under  my  hand  this  13th  November,  1861. 

(Signed,)  Joseph  II.  Maxwell, 

B.  B.  Quatermons,  Deft  Clerk. 

There  is,'  then,  it  is  supposed  below  on  the  same  paper,  a 
certificate,  signed  by  the  names,  Louis  Thompson,  J.  P.,  an  1 
A.  II.  McDonald,  in  the  following  words  : 

We,  the  undersigned,  do  hereby  certify  that  the  above  is 
a  correct  abstract  of  the  returns  made  to  this  office. 

Given  under  our  hands  this  I  3th  November,  1861. 

(Signed,)  LOUIS  THOMPSON,  J.  P., 

A.   II.   McDonald. 

We  affirm  that  this  paper  is  insufficient,  and  nought  for 
several  defects. 

It  is  not  by  the  proper  persons  duly  qualified,  for  these 
reasons : 

1.  The  statute  requires  the  work  shall  be  done  and  certi- 
fied by  the  clerk,  not  by  him  or  his  deputies,  and  the  other 
two  persons  mentioned.  There  is  an  enactment  of  the  Legis- 
lature, that  deputy  clerks  may,  in  the  name  of  their  princi- 
pals, perform  the  duties  required  of  their  principals  ;  and 
such,  it  is  supposed,  was  the  common  law.  But  it  is  submit- 
ted that  the  duties  here  meant,  are  the  duties  as  clerk  of  the 
court,  as  the  ministerial  officer  thereof,  and  not  duties  alto- 
gether different,  conferred  on  them  by  a  law  not  in  relation 
to  clerks  or  their  courts.  In  such  cases  the  term  of  office  is 
used  merely  to  denote  the  person  who  occupies  the  position. 
There  is  abundant  reason  for  this  construction.  It  can 
hardly  be  supposed  that  the  Legislature  intended  to  assign 
this  important  duty,  including  the  choice  of  his  associates 
in  it,  to  any   inferior  deputy  who  may  have  been  admitted ; 


10  CONFEDERATE  CONGRESS.      ' 

JOHNSON    VS.    GARLAND. 

and  it  is  supposed  that  this  case  illustrates  the  propriety  of 
this  intrepretation  of  the  enactment. 

2.  The  statute  prescribes  that  the  clerk  of  the  county 
court  shall  take  to  his  assistance  two  justices  of  the 
peace  of  the  county,  or  two  householders,  having  the  quali- 
fications of  electors.  The  certificate  to  the  abstract  is  signed 
Louis  Thompson,  J.  P.  The  J.  P.  may  signify  Justice  of 
the  Peace,  but  it  is  not  said  of  what  county  Mr.  Thompson 
is  a  justice,  and  is  not  said  that  he  had  been  chosen  by  the 
eiLerk,  or  acted  with  him  in  making  the  abstracts  or  return. 

3.  Immediately  below  the  name  of  Louis  Thompson  is 
fou.  d  a  name,  A.  II.  McDonald,  without  addition  or  prefix, 
and  there  is  nothing  whatever  to  show  that  he  was  either  a 
householder,  or  had  the  qualifications  of  an  elector. 

But  this  Mr.  McDonald  was  neither  sworn  nor  affirmed  to 
perform  -this  duty. 

The  statute  we  have  seen  expressly  requires  by  a  separate 
section  that  the  householders  shall  take  an  oath  faithfully  and 
impartially. to  discharge  their  duties,  and  it  ought  certainly 
to  appear  i  in  .some  form  that  this  requirement  had  been  ob- 
served ;  whereas  nothing  of  the  sort  appears. 

But  the  certificate  is  insufficient  by  whomsoever  given.- 
The  certificate  of  the  clerk  here  is  of  his  own  separate 
act;  and  the  certificate  of  Mr.  Thompson  and  Mr.  McDonald 
is  a  separate  act  of  their  own.  Two  certificates  are  on  the 
same  paper,  but  they  are  distinct  things,  and  do  not  import 
that  the  persons  who  signed  the  two  had  acted  together  in 
the  work.  The  statute  manifestly  requires  that  the  work 
of  examining  the  returns  and  of  making  up  this  abstract 
shall  be  the  joint  operation  of  all  three  of  the  persons.  It 
will  be  sufficient  if  the  document  so  produced  is  signed 
by  two  o:  them.  But  whether  signed  by  two  or  the  three, 
it  must  purport  to  be  the  joint  act  and  production  of  them  all. 

(Tldurn  of  Electors  of  President.) 

We  will  mention  here,  for  the  purpose  of  illustration, 
another  document  produced  by  this  deputy  clerk  in  his  office 
on  the  same  day.  It  ought  to  have  been  an  abstract  and 
return  of  the  votes  at  the  several  precinct  elections  of  the 
County  of  Arkansas  for  electors  of  President  and  Vice- 
President.  We  will  see  what  it  was  in  fact,  here  follows  a 
copy : 


CONTESTED  ELECTION.  11 


EXPOSITION    AND    ARGUMENT. 

Abstract  from  the  poll-books  of  the  general  election  hell 
in  and  for  the  County  of  Arkansas,  in  the  State  of  Arkan- 
sas, on  Wednesday,  the  sixth  day  of  November,  1861,  for 
electors  to  elect  a  President  and  Vice-President  for  the  Con- 
federate States  of  America : 

Edward  Cross, 

David   Walker, 

John  R.  Hampton,  | 

H.  L.  Gunstead,      }  Received  379  votes. 

W.  C  Bensens,       I 

W.  W.   Mansfield,  | 

R.  M.  Gains,  J 

I,  Joseph  II.  Maxwell,  Clerk  of  the  Circuit  Court,  and, 
ex  officio,  Clerk  of  the  County  Court  in  and  for  the  county 
of  Arkansas,  do  hereby  certify  that  the  above  statement  of 
the  polls  of  the  election,  held  in  said  county  on  the  6th  day 
of  November,  1861,  is  true,  according  to  the  poll-books  re- 
turned and  filed  in  my  office,  according  to  law. 

[Seal.]     Given  under  my  hand  and  seal,  &c. 

Joseph  II.  Maxwell, 
per  B.  F.  Quertermons,  B.  C. 

To  this  is  annexed  the  certificate  of  Lewis  Thompson  and 
A.  II.  McDonald. 

Here  it  appears  that  each  of  the  candidates  received  379  ! 
votes.  But  the  work  and  document  were  so  defective  that 
on  the  10th  day  of  December  afterwards  the  clerk  himself, 
with  the  justice  of  the  peace  and  householder,  performed  it 
all  over  again  according  to  law,  and  certified  the  proper 
abstract  and  return.  It  shows  the  votes  of  the  several  elec- 
tion precincts  of  the  County  cast  for  each  of  the  candidates, 
and  that  one  of  them  received  oil!!  another  503  !  !  four  of 
them  512  !  !  and  the  other  120  votes  in  the  County. 

{County  Returns  of  Election  for  Congress.) 

But  we  will  return  to  the  matter  of  the  election  of  the 
member  of  Congress. 

The  errors  and  defects  in  the  abstract  return  of  this  elec- 
tion made  up  on  the  1 3th  of  November,  having  been  dis- 
covered, the  matter  was  now  all  re-examined.     And 


12 


CONFEDERATE  CONGRESS. 


JOHNSON    VS.    GARLAND. 


The  clerk  himself,  with  a  justice  of  the  peace  and  a 
householder,  now  duly  sworn,  proceeded  to  compare  the  sev- 
eral election  returns  which  had  been  made  to  the  clerk's 
office  on  the  13th  of  November,  and  with  the  full  knowledge 
of  the  errors  previously  committed,  and  the  necessity  of 
having  all  now  right,  thereupon  made  their  abstract  of  the 
votes  given  in  the  several  townships  for  each  of  the  candi- 
dates for  Congress,  and  made  in  legal  form  their  joint 
return  thereof. 

We  give  a  copy  of  this  document. 

State  of  Arkansas, 

County  of  Arkansas: 
At  an  Election  held  at  the  several  precincts  in  Arkansas 
County,  Arkansas,  on  the  6th  day  of  November,  A.  D., 
1861,  pursuant  to  notice,  for  the  purpose  of  electing  one 
member  to  Congress  of  the  Confederate  States  of  America 
from  the  3d  District  of  the  State  of  Arkansas,  whereupon 
the  following  named  persons,  candidates  for  Congress,  re- 
ceived the  number  of  votes  opposite  their  respective  names, 
viz : 


NAMES  OF  CANDIDATE?. 


A.  H.  Garland 

J.  P.  Johnson 

John  C.  Murray. . 
S.  F.  Arnett.  . .  . 
William  P.  Grace. 
Thomas  S.  James. 

B.  C.  Harley 


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State  of  Arkansas, 

County  of  Arkansas: 

We,  Joseph  H.  Maxwell,  Clerk  of  the  Circuit  Court  and 
£,x  officio  Clerk  of  the  County  Court  in  and  for  said  County, 


CONTESTED  ELECTION.  13 


EXPOSITION    AND    ARGUMENT. 

and  Lewis  Thompson,  an  acting  and  duly  commissioned 
Justice  of  the  Peace,  in  and  for  said  County,  and  Alva  H. 
McDonald,  a  householder  and  resident  of  said  County  of 
Arkansas,  first  being  duly  sworn  according  to  law,  do  here- 
by certify  that  we  have  this  day  examined  the  poll-books,  of 
the  election  above  mentioned,  and  that  A.  H.  Garland  re- 
ceived 195  votes;  J.  P.  Johnson  133  votes;  John  C.  Mur- 
ray 97  votes;  S.  F.  Arnett  9  votes;  William  P.  Grace  8 
votes;  Thomas  S.  James  1  vote,  and  B.  C.  Harley  10  votes, 
and  that  the  above  is  a  true  and  correct  abstract  of  the  votes 
as  returned  from  the  several  precincts  in  said  County  of  Ar- 
kansas. 

Given  under  our  hands  this  10th  day  of  December,  1861. 

Joseph  Maxwell,  Clerk. 

Lewis  Thompson,  /.  P. 

A.  II.  McDonald,  Householder. 

These  gentlemen  then  addressed  to  the  Governor  the  fol- 
lowing letter,  and  enclosed  to  him,  under  seal,  this  the  true 
abstract  and  final  return,  and  sent  the  packets  by  a  special 
messenger.     This  is  a  copy  of  the  letter. 

"  Dewitt,  Arkansas,  December  10th,  '61. 

To  His  Excellency  Henry  M.  Rector,  Governor  of  Arkan- 
sas, and  John  J.  Stirman,  Secretary  of  State  : 

We,  Louis  Thompson  and  Alva  II.  McDonald,  who  were 
called  upon  by  Joseph  II.  Maxwell,  clerk  of  Arkansas 
County,  on  the  13th  day  of  November,  1861,  to  examine 
and  make  out  an  abstract  of  the  vote  cast  for  President  and 
Vice-President  and  President  electors,  and  also  for  member 
of  Congress  to  represent  this  District,  the  (3)  in  the  first 
Confederate  Congress  ask  that  they  be  permitted  to  withdraw 
the  abstract  that  they  then  made  out  in  order  that  they  may 
be  able  to  substitute  the  true  and  correct  returns  of  the  volts 
as  found  by  the  poll-books  in  the  office  in  the  County  of 
Arkansas  and  State  of  Arkansas. 

The  correct  return  or  abstract  they  now  enclose  under 
cover  of  seal,  and  have  despatched  Green  C.  Crossen  as  a 
messenger  to  deliver  the  same  to  you  at  office  of  Secre- 
tary of  State  at  Little  Rock,  which  they  pray  you  to  receive 
and  count  as  the  correct  vote  of  the  County  of  Arkansas  as 


14  CONFEDERATE  CONGRESS. 


JOHNSON    VS.    GARLAND. 


made  known  by  the  election  at  the  different  places  of  voting 
in  said  County  on  the  sixth  day  of  November,  1861,  and  are 
to  be  found  on  file  in  the  County  clerk's  office  at  Dewitt,  the 
County  seat  of  Arkansas  County. 
Very  respectfully,  &c, 

Joseph  H.  Maxwell, 
Louis  Thompson, 
A.   H.   McDonald." 

The  above  letter  and  the  final  return  of  the  election 
mentioned  in  it  were  both  received  accordingly.  They  were 
each  thus  endorsed  : 

c<  Arkansas  County  election  returns  for  congressman  for 
the  3d  Congressional  District  of  the  Confederate  States  of 
America. 

Received  December  11th,  at  4  o'clock,  P.  M. 

John  J.  Stirman,  per 
E.  W.   Stirman  Deputy" 

It  is  objected  by  the  honorable  gentleman,  in  his  printed 
argument,  that  those  persons  had  no  lawful  authority  to  per- 
form this  work,  because  the  office  had  been  performed  on 
the  13th  November,  and  that  they  were  thereby  afterwards 
functus  officio.  But  we  have  shown  that  the  work  on  that 
day  was  not  executed  by  the  persons  then  possessed  of  the 
qualifications  required  by  law,  and  was,  therefore,  nought. 
It  cant  be  necessary  to  stop  to  refute  such  an  argument.  It 
will  only  be  mentioned  that  it  cannot  be  inferred  from  the 
fact  that  it  appears  in  this  document  of  the  10th  of  Decem- 
ber, that  Mr.  Thompson  and  Mr.  McDonald  was  at  this  time 
possessed  of  the  qualifications  prescribed  by  law,  that  they 
possessed  all  these  qualifications  on  the  13th  November 
The  rule  of  law  is  that  in  such  casos  we  may  infer  forward 
but  not  backwards.  It  is  palpable  that  the  fact  that  he 
was  sworn  on  this  occasion,  does  not  warrant  the  inference 
that  he  was  sworn,  as  was  required  by  law,  on  the  13th  No- 
vember, before  he  fixed  his  name  to  the  certificate  of  that 
date.  But  the  universal  proposition  is  asserted  that  such  a 
defective  and  invalid  certificate  is  not  helped  in  any  respect 
by  the  subsequent  legal  and  valid  return.  It  was  nought  at 
first  and  so  remained. 

It  is  hardly  necessary  to  mention  that  the  fact  that  this 
examination   of    the    returns   was    made    and   the    abstract 


CONTESTED  ELECTION.  J5 


EXPOSITION    AND    ARGUMENT. 

thereof  made  up  after  the  day  directed  by  the  statute,  is  no 
valid  objection  to  its  effect.  When  an  act  directed  to  be 
performed  at  a  certain  time  is  omitted  on  such  day,  it  may 
be  executed  in  a  convenient  time  afterwards,  unless  some 
lawful  act  shall  have  been  performed  which  precludes  a  sub- 
sequent exercise  of  the  power  and  we  shall  find  that  the  act 
of  the  Secretary  and  Governor  in  making  up  their  abstract 
prior  to  the  expiration  of  the  time  limited  by  law,  and 
before  sufficient  returns  had  been  received  from  all  the  coun- 
ties of  the  district,  was  contrary  to  law. 

Thus  much  for  the  proceedings  in  the  townships  and  at 
the  Courthouse. 

[Abstract  at  Capital  and  Governor's  Return.) 

We  now  proceed  to  what  is  prescribed  to  be  performed  at 
the  Capital,  and  what  was  there  done  in  fact  by  the  Gov- 
ernor.    We  will  copy  the  law  : 

Sec.  73.  It  shall  be  the  duty  of  the  Secretary  of  State,  in 
the  presence  of  the  Governor,  within  thirty  days  after  the 
time  herein  allowed  to  make  returns  of  elections  to  the 
clerks  of  the  county  courts,  or  sooner,  if  all  the  returns 
shall  have  been  received,  to  cast  up  and  arrange  the  votes 
from  the  several  counties,  or  such  of  them  as  may  have  made 
returns  for  each  person  voted  for  as  member  of  Congress  ; 
and  the  Governor  shall  immediately  thereafter  issue  his 
proclamation,  declaring  the  person  having  the  highest  num- 
ber of  votes,  to  be  duly  elected  to  represent  this  State  in 
the  House  of  Representatives  of  the  Congress  of  the  United 
States,  and  shall  grant  a  certificate  thereof,  under  the  seal 
of  State,  to  the  person  so  elected. 

Now,  the  question  here  arises,  from  what  time  the  thirty 
days  here  mentioned  ought  to  be  calculated,  in  order  to  as- 
certain the  day  on  which  the  Secretary  and  the  Governor 
were  required  to  act.  It  may  be  the  third  day  after  the 
election — the  day  on  wrhich  one  of  the  judges  was  required 
to  deliver  the  polls  to  the  clerk.  If  all  the  returns  are  thus 
received  by  the  judges,  the  day  for  the  comparison  by  the 
clerk  and  his  associates,  is  fixed  on  the  fifth  day  after  the 
election ;  but  it  is  declared,  in  a  subsequent  section,  (58,) 
that  if  the  returns  are  not  all  received  on  the  third  day,  on 
the  fourth  day  the  clerk  shall  dispatch  a  messenger'to  bring 


16  CONFEDERATE  CONGRESS. 


JOHNSON    VS.    GARLAND. 

them  up,  and  that,  in  such  case,  the  polls  shall  not  be  com- 
pared until  the  seventh  day.  If,  in  this  case,  the  first  com- 
parison was  on  the  seventh  day  after  the  election,  November 
13th,  the  presumption  is,  a  messenger  had  been  dispatched 
to  bring  up  the  return  of  some  township,  and  it  may  be  af- 
firmed that  the  time  allowed  to  bring  up  the  returns  of  the 
election  to  the  clerk  did  not  expire  until  with  the  expiration 
of  the  sixth — preceding  day. 

This  is  supposed  to  be  the  true  construction ;  it  is 
symmetrical  with  another  provision  of  the  act,  and  is 
reasonable.  It  is  provided  by  the  71st  section,  that  if 
there  be  a  failure  to  receive  returns  at  the  seat  of  gov- 
ernment, for  two  days  after  the  same  are  due,  the  Sec- 
retary of  State  shall  dispatch  a  messenger,  who  shall  ob- 
tain and  bring  them  up.  The  time  in  which  the  returns  are 
thus  due,  is  calculated  from  the  day  on  which  the  compari- 
son of  the  returns  is  made  by  the  clerk  and  his  associates, 
and  obtained  by  adding  two  days,  allowed  him,  to  deposit 
the  packets  in  the  post-office,  and  adding  thereto  the  time 
for  the  passnge  of  the  mail.  But  on  what  day  shall  the 
Secretary  assume  the  polls  had  been  compared  by  the  clerk? 
It  may  have  been  en  the  5th  or  7th  day  after  the  election, 
but  it  is  palpable  he  ought  to  assume  the  7th  day.  And  it 
is  most  reasonable  that  he  ought,  in  fixing  the  thirty  days 
within  which  he  is  required  to  open  the  polls,  to  make  the 
calculation  from  the  day  on  which  the  returns  of  all  the 
townships  had  been  made  to  the  clerk's  office,  on  the  suppo- 
sition that  he  had  found  it  necessary  to  send  for  one  or  more 
of  them.  The  object,  in  each  case,  was  to  ascertain  when 
the  returns  are  due  at  the  seat  of  government,  and  the 
means  adopted  in  them  both  was  to  allow  full  time,  and  cer- 
tainly the  calculation  ought  to  be  made  in  both  cases  from 
the  same  event. 

These  two  are  the  only  constructions  which  it  has  been 
thought  worth  while  to  state.  There  is  another,  which 
would  make  the  expiration  of  the  day  preceding  the  5th  day 
after  the  election,  the  time  from  which  the  thirty  days  ought 
to  be  calculated.  This  was  the  first  day  on  which  the  clerk 
and  his  associates  were  authorized  to  compare  the  returns 
from  the  counties.  On  this  construction,  the  time  allowed 
the  Secretary  and  Governor  for  the  comparison  of  the  re- 
turns of  *the  several  counties  expired  only  with  the  expira- 


CONTESTED  ELECTION 


EXPOSITION    AND    ARGUMENT. 

tion  of  the  11th  day  of  December,  and  this  would  be  suffi- 
cient for  our  purpose. 

But  the  truth  is,  it  did  not  expire  until  the  13th  of  the 
month,  and  on  recurring  to  the  enactment  this  will  be  found 
sufficiently  plain  in  the  words  of  the  law. 

{Calculation  of  the  Times.) 

The  words  are  "within  30  days  after  the  time  allowed  to 
make  returns  of  elections  of  clerks  ;  not  the  time  directed 
by  single  imperative  enactment,  but  according  to  the  several 
provisions  of  the  statute  in  either  of  the  cases  therein  sta- 
ted, and  such  as  will  accomplish  the  object  of  the  law. 

It  had  been  made  the  duty  of  one  of  the  judges  of  the 
election  to  deliver  the  return  to  the  clerk  within  3  days  after 
the  election;  but  it  was  afterwards  provided  that  if  the  re- 
turn was  not  received  on  this  day,  the  clerk  should  on  the 
fourth  day  send  a  messenger  for  it,  and  that  in  such  case  the 
clerk  and  his  associates  should  no^t  proceed  in  their  work 
until  the  7th  day,  unless  the  polls  had  been  sooner  received, 
and  therefore  all  the  time  up  to  the  7th  day  was  allowed  for 
the  returns  to  be  made  to  the  clerk. 

The  words  are  "  after  the  time  herein  allowed  to  make  re- 
turns to  the  clerks."  The  clerks  are  allowed  to  receive  the 
returns  at  any  time  before  the  abstracts  shall  have  been  made 
on  the  7th  day  after  the  election  ;  and  the  returns  could  not 
have  been  received  unless  they  had  been  sent  to  the  clerk, 
and  it  would  seem  to  follow  that  this  time  allowed  to  make 
the  returns  extended  up  to  a  convenient  time  in  the  7th 
day,  on  which  the  clerk  and  his  associates  were  required  to 
act.  But  we  have  chosen  to  avoid  any  question  about 
the  division  of  days,  and  assume  that  the  Secretary  ought 
to  have  made  his  calculation  from  the  expiration  of  the  day 
preceding  that  on  which  the  action  was  to  be  had  on  these 
returns.  This  is  a  fair  construction  upon  at  once  the  words, 
the  context,  and  reason  of  the  law. 

It  might  be  supposed,  on  the  letter  of  a  portion  of  the 
enactment,  that  the  Secretary  and  Governor  might  proceed 

at  any  time  within   these  30   days,  but  the  clause or 

sooner  if  all  the  returns  shall  have  been  received  clearly 
shows  that  it  was  not  intended  that  they  should  proceed  ex- 
cept in  the  case  stated  until  the  end  of  this  period,  and  what 
was  intended  was  the  law. 

9 


18 


CONFEDERATE  CONGRESS. 


JOHNSON    VS.    OAKLAND. 


We  will  now  state  the  consequences  of  the  several  con- 
structions, and  the  words  cannot  be  so  wrested  as  to  give 
any  other  interpretation  to  the  law. 

If  we  adopt  the  one  first  mentioned,  the  time  expired  with 
the  9th  day  of  December,  but  according  to  that  which  we 
Lave  adopted,  it  did  not  expire  until  with  the  expiration  of 
the  13th  of  December,  three  days  after  the  Governor  had 
acted. 

(Digression  about  the  "Intermediate  Return") 

We  will  here  mention  a  reason  why  the  Governor  ought 
not  to  have  proceeded  thus  prematurely  which  did  not  ap- 
pear in  our  evidence,  but  was  shown  by  the  sitting  member 
himself. 

The  gentleman  read  as  evidence  in  his  behalf  the  follow- 
ing abstract,  certificates  with  their  endorsement. 
"A  list  of  votes  given  on  the  6th  day  of  November,  1861, 
in  Arkansas  County,  Arkansas,  for  Congress. 


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1 

State  of  Arkansas, 

County  of  Arkansas  : 
I,  Joseph  H.  Maxwell,  clerk  of  the  Circuit  Court  and  ex 
officio  clerk  of  the  County  Court  in  and  for  the  County 
aforesaid,  do  hereby  certify  that  I  have  examined  the  poll- 
books  of  the  Congressional  election  held  in  said  county,  on 
the  6th  day  of  November,  1861,  and  that  the  above  and  fore- 


CONTESTED  ELECTION.  19 


EXPOSITION    AND    ARGUMENT. 


going  abstract  is  a  full  and  correct  list,  and  that  I  found 
that  A.  H.  Garland  received  186  votes,  J.  P.  Johnson  re- 
ceived 98  votes,  S.  F.  Arnett  received  5  votes,  J.  C.  Murray 
received  91  votes,  Harley  1<>  votes,  Grace  4  and  James  1. 

S^w^^-s  In  testimony  whereof  I  have  hereunto  set  my 

Seal.    >  hand  and  affixed  the  seal  of  my  office,  the  7th 
v^~  >  of  December,  A.  D.,  1861. 

Joseph  H.  Maxwell,  Clerk" 


Executive  Office,  ) 

Little  Rock,  Dec.  11th,  1861.    \ 

This  return,  made  by  the  Clerk  of  the  County  of  Arkan- 
sas, is  deemed  by  me  inadmissible,  for  the  reasons — 

1st.  It  was  not  returned  within  the  time  prescribed  by 
law. 

2nd.  It  was  not  sent  in  the  mode  prescribed  by  law. 

3d.  It  is  invalidated  by  the  second  paper,  or  certificate  of 
the  same  date,  sent  me  through  the  same  channel,  marked 
No.  2.  The  Clerk  stated,  in  his  No.  1,  the  vote  of  Polk 
township  is  not  found  in  his  office. 

(Signed.)  H.   M.  Rector, 

Governor   of  Arkansas. 


Secretary  of  State's  Office,  J 

Little  Rock,  Arkansas,      > 

February  4,  A.  D.  1862.   ) 

I,  John  I.  Stirman,  Secretary  of  State  of  the  State  of 
Arkansas,  hereby  certify  that  the  foregoing  two  pages  of 
abstracts  and  returns  and  certificates  of  election,  sent  up  by 
Joseph  II.  Maxwell,  who  is  clerk  of  the  Circuit  court,  and, 
ex  officio,  clerk  of  the  County  court  in  and  for  the  County  of 
Arkansas,  in  the  State  of  Arkansas,  and  also  the  page  at- 
tached, which  contains  the  opinion  of  Henry  M.  Rector, 
Governor  of  the  State  of  Arkansas,  is  a  true,  literal,  and 
perfectly  compared  copy  of  the  original  documents  of  the 
same  purport,  now  on  file  in  this  office. 

S/-wv-*-\  In  testimony   whereof,   I,   John    I.    Stirman, 

Seal.    >  Secretary  of  the  State  of  Arkansas,  do  hereunto 
^*-v~w  *  set  my  hand,  and  affix  my  official  seal  of  office, 
on  the  day  and  year  first  above  written. 

John  I.   Stirman, 
Secretary  of  State. 


CONFEDERATE  CONGRESS. 


JOHNSON    VS.    GARLAND. 

There  are  several  tilings  upon  this  paper  it  is  difficult  to 
understand. 

It  is  not  endorsed  by  the  Secretary  of  State,  filed  in  his 
office,  and  is  not  contained  in  the  "complete  transcript  of  the 
original  election  returns  and  endorsement  on  file  in  his  of- 
fice in  relation  to  the  election,"  made  out  by  the  Secretary, 
and  certified  by  him  on  the  13th  December,  and  which  was 
produced  here  by  the  contestant,  but  was  certified  by  the 
Secretary  of  State  on  the  4th  day  of  February,  and  was  pro- 
duced here  by  the  sitting  member  as  evidence  in  his  behalf. 

It  was  endorsed  by  the  Governor,  but  it  does  not  appear 
when  the  paper  came  to  his  hands.  He  says  it  was  not  re- 
turned within  the  time  prescribed  by  law  ;  but  it  was  con- 
tended in  argument  by  Mr.  Garland  that  it  was  received 
prior  to  the  10th  of  December,  and  on  this  ground  supposed 
that  it  might  have  been  adopted  instead  of  the  return  of  the 
13th  November,  and  that  he  would  have  been  thus  elected 
by  fourteen  votes.  The  Governor  said  it  was  not  sent  in  the 
mode  prescribed  by  law7,  and  wTas  invalid  by  this  second  pa- 
per or  certificate  of  the  same  date  sent  him  through  the 
same  channel,  marked  No.  2;  that  the  clerk  stated  in  his 
number  1  (which  is  supposed  to  be  this  paper)  the  vote  of 
Polk  township  was  for  Mr.  Garland  ten  votes,  in  No.  2  he 
certifies  the  vote  for  Mr.   Garland  is  not  found  in  his  office. 

This  paper  No.  2  is  not  found  here,  it  is  not  produced, 
and  such  a  mention  of  such  a  paper  can  have  no  effect.  It 
will  be  merely  mentioned  that  this  is  the  only  allusion  to 
an  absence  of  the  returns  of  the  vote  of  any  township  on 
any  occasion,  and  that  in  all  the  returns  produced  in  which 
the  townships  are  mentioned  at  all,  Polk  township  is  con- 
tained. But  the  truth  is  the  whole  document  is  nought  for 
any  purpose  except  for  the  one  we  mentioned. 

The  clerk  had  no  more  power  to  make  this  return  of  the 
election  than  his  deputy  had  to  make  up  that  of  the  13th  of 
November.  Clerks  can  only  transcribe  records  and  docu- 
ments in  their  offices,  and  certify  that  such  transcripts  are 
true  copies.  They  cannot  ascertain  their  effect  by  induc- 
tion, and  certify  the  result.  And  the  statutes  in  relation 
to  elections  do  not  authorize  the  clerk  to  do  any  act,  otherwise 
than  in  conjunction  with  other  persons,  except  to  receive  and 
preserve  packets,  and  to  deposit  certain  papers  in  the  post- 
office.     It   is,   therefore,  nought;  yet  the  honorable  gentle- 


CONTESTED  ELECTION.  21 


EXPOSITION    AND    ARGUMENT. 

man  contended  that  by  the  addition  of  this  nought  to  his  re- 
turn of  the  13th  November,  which  we  have  proven,  is  also 
nought,  and  assuming  he  had  two  certificates  to  Mr.  Johnson's 
one,  humourously  contended  that  he  was  elected  by  the  "best 
two  in  three,  which,  the  world  over,  is  considered  decisive 
and  conclusive."  The  humor  and  wit  are  well  enough,  but 
the  logic  of  the  argument  cannot  be  well  admired. 

But  this  paper  was  endorsed  by  the  Governor,  and  with 
the  endorsement,  is  competent  evidence  to  prove  that  the 
Governor  had  been  thus  informed  by  the  clerk  of  the 
county  court,  that  the  supposed  return,  of  the  deputy  clerk, 
of  the  13th  November,  was  erroneous,  and  he  ought  not  to 
have  proceeded  to  make  up  the  abstract  of  the  district,  on 
the  assumption  that  it  was  true,  but  delayed  it  until  the  ex- 
piration of  the  latest  hour  before  he  proceeded  to  action. 

(Resume  of  the  Effect  of  the  Returns.) 

On  the  10th  December,  the  Secretary  of  State  and  the 
Governor  arranged  and  cast  up  the  votes  of  the  several 
counties  of  this  district.  In  this  operation  they  recognized 
the  return  of  the  vote  of  the  county  of  Arkansas,  of  the 
13th  November,  and  accordingly  set  down  that  Mr.  Johnson 
had  received,  in  that  county,  73,  Mr.  Garland  175,  and  B. 
C.  Harley  10  votes;  and  thereupon  produced  the  following 
abstract : 


22 


CONFEDERATE  CONGRESS. 


JOHNSON    VS.    GARLAND. 


"Ill  the  Third  Congressional  District  the  following  named 
persons  received  the  number  of  votes  set  under  their  names, 
to-wit : 


d 

o 

q 

H3 

O 

^ 

o9 

43* 

o 

Counties. 

H-a 

*H 

o> 

o 

P-J 

83 

o 

o 

to 
c 

o 

w 

W 

d 

s^ 

F=! 

p-l 

-4-3 

o3 

Ha 

<! 

pq 

ha 

QQ 

► 

Pulaski 

117 

444 

221 

9 

21 

1 

2 

Saline 

144 

149 

52 

123 
231 

20 

190 
112 

60 

2 
18 

8 
34 
51 

1 

8 
100 

Dallas 

1 

Calhoun 

1 

Union 

172 

348 

343 

70 

194 

58 

98 

1 

7 

14 

105 

2 

Jefferson 

Bradley 

165 

73 

183 

136 

17 

99 

Drew 

196 
11 

241 
163 

186 
336 

26 
53 

176 
55 

17 

4 

Ashley 

Chicot, 

82 

161 

1 

38 

2 

1 

1 

Desha 

347 
73 

22 
175 

10 

33 

93 

3 
6 

3 

8 

Arkansas 

1 

Prairie 

269 

91 

159 

2 

146 

2 

Total 

2,125 

2,157 

1710 

527 

514 

263 

8 

Here,  it  appears,  Mr.  Garland  had  received,  in  all  the  dis- 
trict, 2,157  votes,  Mr.  Johnson  2,125,  and  that  the  highest 
number  of  votes  cast  for  any  other  candidate  was  1,710  for 
Mr.  Ilarley ;  it  was  thereupon  announced  that  Mr.  Garland 
was  duly  elected,  and  the  return  thereof  was  made  accord- 
ingly. 

The  Governor  acted  too  early,  and,  in  his  action  upon  the 
returns  before  him,  erred  in  making  up  this  abstract,  and, 
consequently,  in  his  return  of  the  election. 

It  is  provided  that  the  Governor  may  act  before  the  expi- 
ration of  the  thirty  days,  if  all  the  returns  have  been  re- 
ceived ;  but,  by  returns  is  here  certainly  meant  such  returns 
as  are  required  by  the  law,  made  by  the  clerk  and  two  jus- 
tices of  the  peace,  or  two  householders,  who  had  been  sworn 


CONTESTED  ELECTION.  23 


EXPOSITION    AND    ARGUMENT. 


to  faithfully  and  impartially  perform  the  duty,  and  no  such 
returns  had  been  received  by  the  Secretary  of  State,  on  that 
day,  from  the  county  of  Arkansas;  therefore,  he  ought  to 
have  delayed  until  the  last  day  allowed  by  law.  If  he  had 
done  this,  he  would  have  been  compelled  to  return  that  Mr. 
Johnson  had  been  duly  elected. 

This  last  day  we  have  seen  was  either  the  11  th  or  the 
13th  of  December;  and  on  the  1  1th  of  the  month  we  have 
seen  that  a  perfect  and  true  abstract  of  the  votes  of  the 
county  of  Arkansas,  in  all  respects  conformable  to  the  law, 
was  returned  and  filed  in  the  office  of  the  Secretary  of  State, 
and,  therefore,  ought  to  have  been  contained  in  the  state- 
ment or  abstract  which  the  Governor  and  Secretary  of  State 
were  required  to  make  of  the  votes  of  the  several  counties 
of  the  district,  and  the  abstract  so  made  would  have  shown 
that  Mr.  Johnson  had  received  in  the  district  eight  votes 
more  than  Mr.  Garland. 

This  will  be  manifest,  by  the  inspection  of  this  abstract  of 
the  returns  of  the  district,  and  the  short  calculation.  On 
this  abstract,  it  is  stated  that  Mr.  Garland  received  in  the 
county  of  Arkansas  175  votes,  and  in  the  entire  district 
2,157  votes.  That  Mr.  Johnson  received  in  the  county  of 
Arkansas  73,  and  in  the  entire  district  2,125  votes.  This 
showed  that  Mr.  Garland  had  a  majority  of  32  votes  in  the 
district.  But  by  the  true  return  from  the  county  of  Arkan- 
sas, it  appears  that  Mr.  Garland  received  in  this  county  195 
votes — an  addition  of  20 — which,  added  to  the  number  it  is 
shown  on  the  general  abstract  he  had  received  in  the  dis- 
trict, made  the  total  number  of  his  vote  2,177  in  the  district. 
But  it  is  shown  by  the  same  document,  that  Mr.  Johnson 
had  received,  in  the  county  of  Arkansas,  133  votes,  instead 
of  73,  as  stated  on  the  Governor's  abstract — an  addition  of 
60  votes,  which  increased  his  total  vote  in  the  district  by 
this  number,  and  proves  that  he  received  2,185  votes  in  the 
district,  and  had,  therefore,  received  in  the  district  a  ma- 
jority of  eight  votes  over  Mr.  Garland. 

It  was  contended  in  argument  by  the  honorable  gentlemen, 
that  if  we  used  the  abstract  of  the  Governor  for  any  pur- 
pose, we  must  admit  the  truth  of  its  statements  in  every 
particular,  and  could  controvert  no  part  thereof.  But  it  is 
hardly  necessary  to  refute  this  position.  We  present  it  all 
as  prima  facia  evidence,  and  thereupon  charge  and  sircharge, 


24  CONFEDERATE  CONGRESS. 


JOHNSON    VS.     GARLAND. 

and  support  our  allegations  by  inspection  and  our  proofs. 
The  case  is  too  familiar  in  the  practice  of  law,  and  obvious 
to  common  sense  to  require  authority  in  its  support. 

The  learned  gentleman  by  the  introduction  of  what  he 
calls  this  intermediate  return,  and  his  skillful  criticism  upon 
all  the  documents  in  relation  to  the  vote  of  Arkans;^  county 
produced,  what  he  seemed  to  consider,  a  confusion  and  un- 
certainty; and,  in  this  State  of  the  matter,  contended  that 
the  decision  and  return  of  the  Governor  ought  to  be  final. 
But  the  Governor  had  nothing  before  him  but  the  documents 
we  have  here  certified  by  his  Secretary,  with  his  own  certi- 
ficate— that  it  is  in  due  form,  and  upon  the  returns  here 
found,  this  House  must  judge  for  itself.  In  doing  this,  it 
has  only  to  discard  whatever  is  invalid  or  nought,  and  only 
caculated  to  produce  this  confusion,  and  all  is  clear.  But 
if  the  gentleman  will  have  it  considered  that  there  is  a  con- 
fusion and  uncertainty  in  respect  to  the  vote  of  Arkansas 
county,  and  that  effect  must  be  given  to  this  uncertainty, 
then  we  propose  that  all  the  returns  from  this  county  be  re- 
jected. There  is  no  uncertainty  or  controversy  in  respect 
to  the  remaining  counties,  and  the  abstract  of  the  votes  in 
them  will  show  that  Mr.  Johnson  received  a  plurality  of 
seventy  votes  cast  and  returned  in  the  district  over  all  of  his 
competitors. 

But  we  maintain  there  is  no  such  uncertainty,  unless 
some  technical  objection  to  our  proofs  is  allowed  eifect,  and 
some  doubts  having  been  expressed  upon  this  matter,  we  pro- 
pose before  the  Committee,  on  our  affidavit,  the  most  effec- 
tual mode  of  removing  it.  We  propose  in  effect,  that  all 
the  returns  of  the  several  townships  of  the  county  of  Arkan- 
sas, on  which  the  clerk  of  the  county  and  his  associates  had 
acted,  should  be  transcribed  and  brought  up  for  thj  inspec- 
tion of  this  House. 

But  the  gentleman  rejected  our  proposition,  and  persisted 
in  insisting  on  the  benefit  of  the  supposed  confusion. 

(Case  on  the  Act  of  Congress  and  the  Proceedings  he  e.) 

Thus  much  on  the  proofs  on  the  supposition  that  it  was 
necessary  that  the  case  of  Mr.  Johnson  should  be  made  out 
by  proof  of  his  allegations.  This  position,  it  will  be  recog- 
nized, was  the  first  in  the  regular  order,  and  this  was  the 
order  of  the  discussion  ;  but  we  here  proceeded  first  upon  the 


CONTESTED  ELECTION.  25 


EXPOSITION    AND    ARGUMENT. 

proofs.  This  we  did,  because  as  we  before  said.  Mr.  John- 
son never  would  have  asked  for  the  seat  in  this  House  had 
he  not  believed  he  had  received  the  highest  number  of  votes 
in  all  the  district.  Now,  this  having  been  done,  we  will 
proceed  with  the  argument  which,  as  we  have  said,  <was 
first  in  order. 

This  argument  will  be  found  in  no  respect  inconsistent 
with  the'  fact  on  which  the  other  was  founded,  it  will  differ 
from  it  only  in  the  mode  by  which  will  be  established  the 
general  fact  that  Mr.  Johnson  was  duly  elected  by  a  major- 
ity of  the  district ;  this  will  be  here  proven  by  the  presump- 
tions established  by  our  excellent  laws.  The  argument  will 
be  an  independent  one,  and  must,  therefore,  be  fully  stated. 

These  are  our  propositions  and  positions : 

1.  Mr.  Johnson,  the  contestant,  did,  within  the  time  pre- 
scribed by  law,  give  to  Mr.  Garland,  the  sitting  member,  le- 
gal notice  of  his  intention  of  contesting  the  election,  and  of 
the  grounds  thereof. 

2.  Mr.  Garland  wholly  neglected  to  return  to  Mr.  John- 
son the  answer  prescribed  and  required  by  law,  or  any  other 
answer  whatever. 

3.  In  this  condition  of  the  case,  neither  the  parties  was 
authorized  by  the  Statute,  or  other  law,  to  take  any  testi- 
mony ;  and  it  was  not  necessary  for  Mr.  Johnson  to  produce 
any  evidence  of  the  allegations  in  his  notice.  They  are  con- 
sidered tacitly  admitted,  and  held  to  be  true,  for  all  the  pur- 
poses of  the  case. 

4.  If  it  should  be  supposed  that  any  proof  is  necessary,  in 
addition  to  these  presumptions  of  the  law,  to  entitle  the  con- 
testant to  the  seat  and  membership  in  this  House,  then  we 
maintain  that  the  proofs  in  the  record  arc  abundantly  suffi- 
cient, whatever  would  have  been  required,  had  the  sitting 
member  answered  the  notice  of  the  contestant,  and  thereby 
made  up  an  issue  of  fact  for  trial  upon  evidence. 

The  law,  and  all  the  law,  in  relation  to  contested  elections, 
is  the  act  of  Congress  of  the  United  States,  passed  in  the 
year  185-,  and  adopted  by  the  comprehensive  act  of  the 
Confederate  Congress,  on  the day  of  Feb'y,  1861. 

We  will  set  out  the  statute.  Its  application  to  the  case 
will  require  but  ordinary  attention.  It  will  be  found  at 
once,  we  suppose,  decisive. 


26  CONFEDERATE  CONGRESS. 


JOHNSON    VS.    GARLAND. 

[Contested  Elections  in  Congress.) 

14.  Whenever  any  person  shall  intend  to  contest  an  elec- 
tion of  any  member  of  the  House  of  Representatives  of  the 

United  States,  he  shall,  within  thirty  days  after  the  result  of 
such  election  shall  have  been  determined  by  the  officer  or 
board  of  canvassers  authorized  by  law  to  determine  the  same, 
give  notice,  in  writing,  to  the  member  whose  seat  he  designs 
to  contest  of  his  intention  to  contest  the  same,  and,  in  such 
notice,  shall  specify,  particularly,  the  grounds  upon  which 
he  relies  in  the  contest. 

15.  Any  member  upon  whom  the  notice  mentioned  in  the 
first  section  of  this  act  may  be  served,  shall,  within  thirty 
days  after  the  service  thereof,  answer  such  notice,  admitting 
or  denying  the  facts  alleged  therein,  and  stating  specifically 
any  other  grounds  upon  which  he  rests  the  validity  of  his 
election,  and  shall  serve  a  copy  of  his  answer  upon  the  con- 
testant. 

16.  When  any  such  contestant  or  returned  member  shall 
be  desirous  of  obtaining  testimony  respecting  such  election, 
it  shall  be  lawful  for  him  to  make  application  to  any  judge 
of  any  court  of  the  United  States,  or  to  any  chancellor, 
judge  or  justice  of  a  court  of  record  of  any  state,  or  to  any 
mayor,  recorder  or  intendant  of  any  town  or  city,  which  said 
officer  shall  reside  within  the  congressional  district  in  which 
such  contested  election  was  held,  who  shall  thereupon  issue 
his  writ  of  subpoena,  directed  to  all  such  witnesses  as  shall 
be  named  to  him,  requiring  the  attendance  of  such  witnesses 
before  him,  at  some  time  and  place  named  in  the  subpoena, 
in  order  to  be  then  and  there  examined  respecting  the  said 
contested  election,  in  the  manner  hereinafter  provided 

17.  Every  such  witness  shall  be  duly  served  with  such 
subpoena,  by  a  cop}^  thereof  being  delivered  to  him  or  her, 
or  left  at  his  or  her  usual  place  of  abode,  at  least  five  days 
before  the  day  on  which  the  attendance  of  the  witness  is  re- 
quired: Provided,  That  no  witness  shall  be  required  to  at- 
tend an  examination  out  of  the  county  or  parisli  in  which  he 
or  she  may  reside,  or  be  served  with  a  subpoena. 

18.  Any  person  summoned  in  the  manner  hereinbefore  di- 
rected, and  refusing  or  neglecting  to  attend  and  testify,  un- 
less prevented  by  sickness  or  unavoidable  necessity,  shall 
forfeit  and  pay  the  sum  of  twenty  dollars,  to  be   recovered, 


CONTESTED  ELECTION.  27 


EXPOSITION    AND    ARGUMENT. 


with  costs  of  suit,  by  the  party  at  whose  instance  the  sub- 
poena was  issued,  and  for  his  use,  by  an  action  of  debt,  in 
any  court  of  the  United  States,  and  shall  also  be  liable  to 
an  indictment  for  a  misdemeanor,  and  punishment  by  fine 
aiul  imprisonment. 

19.  The  party  at  whose  instance  such  subpoena  may  be 
issued,  shall,  at  least  ten  days  before  the  day  appointed  for 
the  examination  of  the  witnesses,  give  notice,  in  writing,  to 
the  opposite  party  of  his  intention  to  examine  witnesses, 
which  notice  shall  contain  a  statement  of  the  time  and  place 
of  the  proposed  examination,  the  name  of  the  officer  who 
shall  conduct  the  same,  the  names  of  the  witnesses  to  be  ex- 
amined, and  their  places  of  residence,  which  notice  shall  be 
served  by  leaving  a  copy  with  the  person  to  be  notified,  or 
at  his  usual  place  of  abode  :  Provided,  That  neither  party 
shall  give  notice  of  taking  testimony  at  different  places  at 
the  same  time,  or  without  allowing  an  interval  of  at  least 
five  days  between  the  close  of  taking  testimony  at  one  place 
and  its  commencement  at  another. 

20.  All  witnesses  who  shall  attend  in  obedience  to  said 
subpoena,  or  who  shall  attend  voluntarily  at  the  time  and 
place  appointed,  of  whose  examination  notice  has  been  given 
as  provided  in  the  next  preceding  section,  shall  then  and 
there  be  examined  on  oath  or  affirmation,  by  the  magistrate 
who  issued  the  subpoena  aforesaid,  or  in  case  of  his  absence, 
by  any  other  such  magistrate  as  is  authorized  by  this  act  to 
issue  such  subpoena,  touching  all  such  matters  and  things 
respecting  the  election  about  to  be  contested  as  shall  be  pro- 
posed by  either  of  the  parties  aforesaid,  or  either  of  them, 
or  by  their  or  either  of  their  agents  ;  and  the  testimony  of 
the  witnesses,  together  with  the  questions  proposed  by  the 
parties  or  their  agents,  the  said  magistrate  is  hereby  author- 
ized and  required  to  cause  to  be  reduced*  in  writing,  in  his 
presence,  and  in  the  presence  of  the  parties  or  their  agents, 
if  attending,  and  to  be  duly  attested  by  the  witnesses  res- 
pectively; after  which  he  shall  immediately  transmit  by 
mail  the  said  testimony,  duly  certified  under  his  hand,  and 
sealed  up,  to  the  clerk  of  the  House  of  Representatives  for 
the  time  being,  together  with  a  copy  of  the  subpoena  and  of 
the  notice  served  upon  the  party,  as  provided  in  the  prece- 
ding section,  and  of  the  proof  of  the  service  of  such  notice. 

21.  The  said  magistrate  shall  have  power  to  require  the 


CONFEDERATE  CONGR] 


JOHNSON    VS.    GARLAND. 

production  of  papers  ;  and  on  the  refusal  or  neglect  of  any 
person  to  produce  and  deliver  up  any  paper  or  papers  in  his 

possession  pertaining  to  said  election,  or  to  produce  and  de- 
liver up  certified  or  sworn  copies  of  the  same  in  case  they 
may  be  official  papers,  he  shall  be  liable  to  all  the  penalties 

prescrihed  in  the  fifth  section  of  this  act  ;  and  all  papers 
thus  produced,  and  all  certified  or  sworn  copies  of  official 
papers,  shall  Le  transmitted  by  said  magistrate,  with  the  tes- 
timony of  witnesses,  to  the  clerk  of  the  House  of  Repre- 
sentatives, 

22.  The  testimony  taken  by  the  parties  to  the  contest,  or 
either  of  them,  shall  lie  confined  to  the  proof  or  disproof  of 
the  facts  alleged  or  denied  in  the  notice  and  answer  mention- 
ed in  the  first  and  second  sections  of  this  act;  and  no  testi- 
mony shall  be  taken  after  the  expiration  of  sixty  days  from 
the  day  on  which  the  answer  of  the  member  returned  shall 
be  served  upon  the  contestant  ;  and  a  copy  of  the  notice  of 
contest,  and  of  the  answer  of  the  returned  member,  shall  be 
prefixed  to  the  depositions  taken,  and  transmitted  with  them 
to  the  clerk  of  the  House  of  Representatives :  Provided, 
That  the  House  may,  at  their  discretion,  allow  supplementa- 
ry evidence  to  be  taken  after  the  expiration  of  said  sixty 
days. 

23.  When  no  such  magistrate  as  is  by  the  third  section  of 
this  act  authorized  to  take  depositions  shall  reside  in  the 
congressional  district  from  which  the  election  is  proposed  to 
be  contested,  it  shall  be  lawful  for  either  part}'  to  make  ap- 
plication to  any  two  justices  of  the  peace  residing  within 
the  said  district,  who  are  hereby  authorized  to  receive  such 
application,  and  jointly  to  proceed  upon  it  in  the  manner 
hereinbefore  directed. 

(We  have  copied  /rom   Brightly's   Digest,  Page  254,  but 

see  9  Statute  at  Large,  56S,  19th  February,  1851.) 

The  effect  of  this  act  upon  the  case  will  be  now  shown, 
and  the  question  upon  the  constitutionality  of  the  enact- 
ment, unexpectedly  suggested,  demonstrated,  by  both  inter- 
pretation and  authority,  we  expect,  beyond  all  doubt. 


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